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Cheney energy task force case sent back to lower court

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Cheney energy task force case sent back to lower court

  • The U.S. Supreme Court ordered a lower federal appeals court to re-examine the case for release of records of Vice President Dick Cheney’s energy task force.

June 24, 2004 — The Supreme Court of the United States today ordered the U.S. Court of Appeals in Washington, D.C., to re-examine the case for access to records of Vice President Dick Cheney’s energy task force under the Federal Advisory Committee Act. The appeals court had ruled in July 2003 that Cheney and the other government defendants must either assert executive privilege or comply with the trial court’s discovery orders before the Court of Appeals could hear the case.

Two public interest groups sought the information to determine if and how the national energy policy had been influenced by private entities.

The Supreme Court ruled 7-2 that because of the important questions of separation of powers involved in the case and because of the burden complying with a discovery order would place on the executive branch, the court of appeals should rule on the case before further proceedings in the trial court.

The suit arose out of the January 2001 creation of the National Energy Policy Development Group by President George W. Bush, commonly called the energy task force. The task force, chaired by Vice President Cheney, was not covered by the open meetings and open records requirements of the Federal Advisory Committee Act if it consisted entirely of government employees.

The public interest groups Judicial Watch and Sierra Club filed separate lawsuits alleging that members of the energy industry were allowed to participate in the task force, making it an advisory committee subject to the act’s openness requirements. The lawsuits were combined in U.S. District Court in Washington, D.C.

Cheney and the other federal defendants argued that the case against them should be dismissed because it would violate the constitutional principle of separation of powers for a court to apply the act to a group providing advice to the president. The trial court refused, and ordered the defendants to proceed with the discovery phase of trial or assert a claim of executive privilege.

The defendants appealed to the U.S. Court of Appeals, but that court ruled July 8, 2003, that it would be premature for it to decide the case because the trial court had not yet issued a final ruling, and because the defendants’ interests could be protected by asserting executive privilege or requesting the scope of discovery to be narrowed. The defendants then appealed to the Supreme Court.

The Reporters Committee for Freedom of the Press, along with the American Society of Newspaper Editors and the Society of Professional Journalists, filed a friend-of-the-court brief with the Supreme Court. The media groups argued that the public and news media’s substantial interest in open government outweighs the minimal intrusion into executive powers presented by the Federal Advisory Committee Act, and that the case should be allowed to proceed to trial so that the open government issues could be litigated properly.

Justice Anthony Kennedy, wrote for the majority, “As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties.

“Instead, it labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections.”

Justices Ruth Bader Ginsburg and David Souter filed a dissenting opinion arguing that the case should be returned to the trial court to proceed under a more narrow discovery plan.

Justices John Paul Stevens and Clarence Thomas filed opinions concurring in the result. Justice Antonin Scalia joined the opinion of Justice Thomas.

(Cheney v. U.S. District Court) GP

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© 2004 The Reporters Committee for Freedom of the Press

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